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LORD ASHBURTON AND THE 
TREATY OF WASHINGTON 



BY 



EPHRAIM DOUGLASS ADAMS 



REPRINTED FROM THE 



l^merian pi^totical %mm 



VOL. XVII., NO. 4 



JULY, 1912 



A. 






''\ [Reprinted from The American Historical Review, Vol. XVH., No. 4, July, 1912.] 



LORD ASHBURTON AND THE TREATY OF 
WASHINGTON 

A CLEAR, Straightforward narrative of the steps of the treaty of 
Washington, it is exceedingly difficult to give. Too many disturbing 
questions were to be disposed of. Certain stipulated points were to 
be settled, others not stipulated demanded equal consideration, and 
each point in turn called for a careful examination into earlier events. 
Thus the study jumps from the negotiation in progress to causes and 
events of many years earlier, or to an investigation of existing con- 
ditions or contemporary events which require a detailed rehearsing. 
Further, first instructions were followed by others, letters and pro- 
tests between the Foreign Secretary and his agent crossed each other 
in transit, while unexpected hindrances developed to hamper the 
American representative. Nevertheless, it seems worth while to 
bring forward the new light upon the Ashburton negotiation, with 
such brevity as shall eliminate the non-essentials and give only pro- 
portionate space to the matters engrossing the attention of the agents. 
The chief business of the treaty was the determining, to the satis- 
faction of both countries, a boundary line which for sixty years had 
been undecided, and for at least twenty years in active dispute. When 
Lord Ashburton was selected by the British government for this 
duty, his appointment was hailed both in England and in the United 
States as especially felicitous. There were indeed those in England 
who doubted the virility and energy of a man of his advanced years, 
while in America a truculent democratic press discovered grounds 
for suspicion in Ashburton's reputation as a financier. In spite, how- 
ever, of these somewhat feeble criticisms, his selection was consid- 
ered proof of a genuine desire on the part of England to negotiate 
upon a sincere and friendly basis. This belief gained still wider 
credence when Webster, the American secretary of state, stated that 
Ashburton had come to Washington without instructions and with 
full powers. It is quite possible that Ashburton, upon his arrival, be- 
lieved himself to be without instructions, and may have so stated to 
Webster at Washington in April of 1842. He brought with him 
from England merely a general outline of the main purposes of the 
negotiation, drawn up by Aberdeen ; to this was appended a " last 
resort" clause on the northeastern boundary question, deemed so 

(764) 



76:; E. D. Adams 



/^D 



acceptable to the United States as to make the success of the negotia- 
tion seem assured. But some weeks later new and positive instruc- 
tions, including certain restrictions, were sent from the British 
Foreign Office — threefold evidence of a more minute consideration, 
of more exact knowledge, and also of a greater appreciation of the 
demands of the colonies in America. These later official instructions 
show clearly Great Britain's desires in the negotiation, and are of 
especial interest when compared with the ultimate terms of the treaty 
of Washington of 1842. \^ery few of the despatches between Aber- 
deen and Ashburton have as yet appeared in print, and the more im- 
portant of them are summarized here. They should reveal Ash- 
burton's exact status as a negotiator extraordinary, England's hopes 
from the treaty, the actual results, and the explanation of the seem- 
ingly extraneous matters embedded in the treaty, or appended to it 
in the form of notes. ^ 

The northeastern frontier question had made practically no head- 
way since the award of the King of the Netherlands, in 1831, de- 
claring that the terms of the treaty of 1783 were impossible under 
actual physiographic conditions, and recommending an equitable 
division of the territory in dispute. This award had been accepted 
by Great Britain and rejected by the United States. Later, Great 
Britain withdrew her assent and the boundary question was no more 
nearly settled than before, but owing to England's consideration and 
rejection of the Dutch king's terms, became an even more delicate 
matter. \Mth Palmerston in control of foreign affairs, courteous 
argument had given place to sharp rejoinder, and Aberdeen cer- 
tainly felt when he took office in 1841 that the matter constituted a 
genuine danger in British foreign policy. Another sore point with 
Americans was the Caroline incident during the Canadian rebellion. 
An American vessel, the Caroline, in December, 1837, had been 
carrying supplies and volunteers from the American side to the rebel 
camp at Navy Island, on the Canadian side of the Niagara River, 
just above the falls. On the night of December 29, a body of Cana- 
dians seized her while at anchor on the American side, towed her 
into midstream, and set her on fire and adrift. This was regarded 

^ The official printed sources on the negotiation of the treaty of Washington, 
with text of the treaty and of notes appended to it, are to be found in House E.r. 
Doc. No. 2. 27 Cong., 3 sess., and in British Sessional Papers, 1843, Commons, vol. 
LXI. In addition to these, Ashburton's instructions on the Oregon boundary are 
in House E.r. Doc. i, pt. i (vol. I., pt. 6), p. 218, 42 Cong., 3 sess. {Berlin Arbi- 
tration. 1872-1873.) Narratives of the negotiation and its results appear in all 
the larger American histories, while an excellent summary with citation of im- 
portant printed documents is in Moore's Digest of International Law. vol. V. The 
additional manuscript material used in this article is in the British Public Record 
Office, under the classification, Foreign Office, America. 



Lord Ashbitrton 766 

by the United States as an invasion of territory and an explanation 
was demanded, but none was immediately forthcoming from the 
British government. In the capture of the Caroline at least one 
American had been killed, and when, in November, 1840, a Cana- 
dian named AIcLeod came into New York state and boasted of 
sharing in the Caroline afifair, he was arrested and tried for murder. 
McLeod, it was ultimately proved, had lied and he was accordingly 
released. The trial, however, had again focused public attention 
upon the Caroline afifair, had fanned into flame the suppressed 
indignation, and this only a few months before Ashburton's arrival. 
There had been intense public excitement and a real danger of war. 
The Caroline incident could neither be forgotten nor ignored, and 
though more than four years had passed, the government of the 
United States still looked for an explanation or an apology. In addi- 
tion to this grievance was the always vexing assertion by England of 
the right to search (or, as the English called it, the " right to visit ") 
American vessels. The British claim of a right to " visit ", though 
in practice now w^iolly confined to suspected slave-traders, aroused 
indignation in all quarters. 

With these points in mind, Aberdeen on Eebruary 8, 1842, drew 
up the instructions which Ashburton carried with him to America, 
and which for some time he regarded as his only official guide in the 
negotiation.' Clearly, from the language and content of this docu- 
ment, he was entitled to believe that he had practically a free hand. 
Aberdeen had merely indicated in general terms the purposes of the 
mission, specifying them as of importance in the order named, north- 
eastern boundary, Oregon boundary, northwestern boundary, Caro- 
line incident, and " right of search ". He desired, if possible, to 
secure a treaty covering all of these points, but both from the in- 
structions and from the accompanying documents it is evident that 
emphasis was placed upon the northeastern boundary controversy, 
and it was rather hoped than expected that a settlement would be 
made of some of the other questions. In regard to the Maine 
boundary, three solutions were permitted to Ashburton: (a) the 
whole British claim, (b) a conventional line which would give Great 
Britain both the upper and lower Madawaska settlements, and pre- 
serve to her the whole navigable portion of the river St. John, (c) 
the line of boundary "contained in the Award of the King of the 
Netherlands. . . . This line, although highly unfavourable and dis- 
advantageous to our interests, we should not be disposed to reject, 
with certain modifications as the basis of settlement; but beyond 

^ F. O., America, 378, no. 2. Merely a brief extract from these instructions, 
on the right of search, is in the Br. Sess. Paps., 1843, Commons, vol. LXI. 



767 E. D. Adams 

this, Her Majesty's Government would not be prepared under any 
circumstances Lo concede." The documents do not indicate just what 
" modifications " of the Netherlands award were desired, nor do they 
refer to that part of the award which, by departing from the strict 
terms of the treaty of 1783, permitted the United States to retain 
possession of Rouse's Point, at the head of Lake Champlain. 
There was, in reality, no British expectation that the " whole claim " 
could be secured, and Ashburton was directed to use all his energy 
to secure the line indicated in the second solution. Unquestionably, 
however, it was within his power to sign a treaty on the line of the 
Netherlands award, if forced to do so. 

Other topics included in this broad instruction received com- 
paratively little attention at the Foreign Office. The affair of the 
Caroline was included, not because any definite settlement was pro- 
posed, but in order to explain the incident, and in an indirect way to 
apologize for it, on the ground of the necessity of self-defense. 
Aberdeen's purpose in this regard was to eliminate a possible cause 
of friction dangerous to an equitable conclusion of the northeastern 
boundary. He did indeed apologize for the delay in expressing to 
the United States regret for the necessity of the act, and he added, 
"The violation of the independent jurisdiction of the United 
States . . . Her Majesty's Gov't regard in a very serious point of 
view. So far are they from thinking that an event of this kind can 
be lightly risked, they would rather deprecate its recurrence by every 
means in their power." Turning to the vexed question of the right 
of search or visit, Aberdeen apparently felt that there was little 
hope of a satisfactory solution. The result of much previous diplo- 
matic correspondence had only served to make clear that neither 
nation would yield her point. Aberdeen denied that Great Britain 
claimed any " right to search " American vessels, but insisted that 
the "right to visit" was quite a dift'erent matter, and that while 
English naval officers were instructed to use it with delicacy "the 
right itself, being manifestly founded on justice and common sense, 
they [Her ^lajesty's government] are determined to maintain". In 
effect, the instructions on this point were mainly a warning to Ash- 
burton not to consider any suggestions of concession by Great 
Britain. On the other hand, there was apparently no expectation 
that the United States would give way.^ 

^ This is in clear contradiction of the statement made by Aberdeen to Everett, 
when, in explaining the purposes of the Ashburton mission, he stated that he 
regarded a solution of the right of search difficulty as " the most important of 
all". Everett to Webster, December 31, 1841. Br. Sess. Paps., 1843, Commons, 
LXI., Correspondence on the Treaty of Washington, p. 15. Either this was a 
blind, or Aberdeen changed his mind before Ashburton's departure, for certainly 
at no time during the negotiation did he appear to believe any agreement probable. 



Lord Asliburton 768 

Thus Ashbiirton left England with a comparatively free hand in 
the essentials of tlie negotiation. After his departure, it is evident 
that more serious consideration was given to the boundary question, 
and particularly to the necessity of preserving the military road con- 
necting Quebec and Halifax. This was no new matter, for direct 
military communication between Canada and Xcw llrunswick had 
for many years been insisted upon by military experts and colonial 
governors. Indeed, in 1828, while preparing the English case to be 
submitted to the King of the Netherlands, a genuine dispute arose be- 
tween the experts of the Colonial and Foreign offices on this very 
point.* The Foreign Office believed the demands of the Colonial 
Office extreme. It is quite possible lliat. in 1842, Aberdeen was in 
similar fashion forced by the Colonial Office to make claims with 
which he personally had little sympathy. Whatever the cause, 
whether from colonial or military officials, the new instructions to 
Ashburton, sent on March 31. 1842, bore directly on the military 
road. Aberdeen wrote : 

!Mv Lord, 

The instructions which Your Lordship has already received will be 
sufficient for the general direction of your conduct in the negotiation 
with which you are charged, for the settlement of our various subjects of 
difference with the Government of the United States. But you have also 
been apprised that the views of Her Majesty's Govt, respecting the estab- 
lishment of the Xorth-East Boundary had not been fully and definitely 
explained ; nor those terms especially, clearly laid down, without obtain- 
ing which, a rupture of the negotiations would be regarded as preferable 
to further concession. In order to leave Your Ld no longer in uncer- 
tainty upon this subject, I have now the honour to communicate to you 
the final Instructions of Her Majesty's Govt. 

As it is the firm determination of Her Majesty to preserve the 
dominion of our North American Provinces, it follows that all necessary 
Precautions must be taken to ensure the success of this resolution. Ad- 
mitting therefore, the principle of a conventional Line, to be agreed 
upon bv a mutual concession of the extreme claims of both the Parties, 
there is a limit, beyond which a regard for the safety of these Provinces 
must forbid us to recede. 

The geographical features of the Country appear to offer no natural 
frontier, or strong line of defence; and the most indispensable condition 
for the security of our North American Possessions is to be found in a 
direct and constant communication between Quebec and the Sea at the 
Port of Halifax, through the Provinces of New Brunswick and Nova 

* F. O., Am., 253, " Canning, Douglas, Addington, etc. on X. E. Boundar>-." 
This volume is largely devoted to a discussion of documents and arguments to be 
presented to the arbiter, and exhibits a marked dis.igreement between e.xperts. 
both as to the claim to be presented and as to arguments in support of it. Colonial 
Office papers, unlike the Foreign Office papers. Were not open to search after 1830, 
at the time when the author was working in the Record Office (1908). They have 
since been opened to 1S37. 



769 E. D. Adams 

Scotia, during that period of the year when the St. Lawrence is ren- 
dered inaccessible. The hne of communication at present runs from 
Fredericton through the valley of the St. John by the Great Falls, to the 
Madawaska River. From thence by Lake Temiscouta and Grand Port- 
age to the St. Lawrence. 

It is deemed essential that this Line should be preserved. 

Her ^Majesty's Government trust that the information which has 
recently been obtained by a scientific examination of the disputed Terri- 
tory, and the Light which has been thrown on the subject by the dis- 
covery and production of important documents connected with the 
negotiations for the peace of 1783, will have produced their effect in the 
United States. Indeed it is difficult to believe that with the assistance 
thus afforded, Your Lordship should not be enabled to bring home to 
the conviction of candid and impartial men a sense of the justice of the 
claim of Great Britain. 

Notwithstanding the reasonableness of this persuasion, H. j\I. Govt 
are not ignorant of the pretensions of the United States, or of the manner 
in w^hich they have been enforced; and having always urged the wisdom 
and expediency of agreeing to a Conventional Line, to be established 
upon a principle of mutual concession, they could scarcely now adhere, 
without any deviation, to the utmost extent of the British Claim put 
forward under the Treaty of 1783. 

Upon this subject you have already received instructions. 

It is possible, however, that the Govt of the United States may be 
determined to revert to the Award of the King of the Netherlands, as the 
Basis of a Settlement. But it must never be forgotten that this Award 
was rejected by the United States, and is therefore in no degree what- 
ever binding upon Great Britain. The record of it remains in the 
Archives of the respective states, and may be referred to as a matter of 
fact, or in negotiation, but cannot possess any obligatory character. 
Should you be unable to prevent this determination on the part of the 
United States, you will at least insist upon taking as a basis the Award 
pronounced by the King, with the avow-ed purpose of obtaining that 
portion of the Territory which is indispensable to our interests, by a 
cession of such parts as may be made without danger. 

The Line laid down by the Royal Arbiter follows the course of the 
St. John, as far as the point of junction of that River with the St. 
Francis. After which, ascending the St. Francis, by a North and 
Westerly direction, it advances near to the St. Lawrence, and falls into 
the Line of Boundary claimed by the L^nited States. It thus very 
materially interferes with the freedom and security of our communica- 
tions. 

The other points submitted to Arbitration, were decided by the King 
of the Netherlands in favour of the British Govt. The District at the 
head of Connecticut River was adjudged to Great Britain; as well as a 
Line of settled Country continued from the head of the Connecticut 
River along the 45th Parallel of Latitude, until it reaches the St. 
Lawrence. This Line includes Rous's Point, a very important position 
on Lake Champlain, which the Govt of the U. States have always shewn 
a great desire to possess. And although this Point was adjudged by the 
King of the Netherlands to the LL States, it was so as a matter of com- 
promise, and contrary to the principle of his decision, which recognized 
the 45th parallel of Latitude as correctly described in the claim of Great 
Britain. 



Lord AsJiburton 770 

Now, these latter advantages might safely be ceded, on condition 
of our obtaining possession of the whole of the Territory between the 
Upper part of the St. John and the St. Lawrence. That is to say, by 
making the River St. John from its junction with the St. Francis up to 
its source in the small Lake of St. John, or the Oostastagomessis of the 
Indians, the Boundary Line with the United States. 

The District thus ceded to us, and now claimed by the United States, 
would comprise about two millions of Acres, wholly unsettled, and for 
the most part consisting of Land partaking of the character of a Pine 
Swamp. But if the Territorial advantages you are enabled to offer on 
other points of the Line, should not be considered as a just Equivalent 
for this cession, Her Majesty's Govt would be disposed to indemnify 
the State of ]\Iaine by a pecuniary compensation, to make good the 
amount of any such deficiency. 

From this modification of the Award of the King of the Netherlands, 
which is considered essential to the security of Canada, H M. Govt 
would not withhold their assent; But Your Lordship will not consider 
yourself authorized to entertain the proposition of a settlement upon 
less favourable ternii." 

Ashbtirton reached Washington on April 4, and was soon en- 
gaged with Webster in an informal discussion of variotis matters 
which it was hoped to incorporate in a treaty. Upon the Maine 
boundary question it was not at first possible to make much advance, 
since ]\Iaine and Massachusetts were slow in giving Webster author- 
ity to act for them. This delay Ashburton regarded as fortunate 
since it gave opportunity for an amicable and unhurried considera- 
tion of other matters. His first reports to Aberdeen were purely 
perfunctory, and gave no detail. Immediately, ho\vever, after re- 
ceiving the instruction of Alarch 31, Ashburton sent two despatches, 
both dated April 25. '^ The first of these, ignoring the new ultimatum 
from Aberdeen, conveyed a full report of the negotiation to date, 
was hopeful in tone, and optimistic as to the ultimate conclusion of 
the mission. The second, acknowledging Aberdeen's advices, was 
devoted to an analysis of the new instructions, and was distinctly 
pessimistic. In the first Ashburton asserted that the outlook was 
favorable to settling all of the outstanding points of dispute. The 
Oregon matter, he thought, could easily be settled, and was really 
of little importance. " I much doubt wdiether the Americans will for 
many years to come make any considerable lodgment on the Pacific." 
It is not apparent, however, that the Oregon question was at any 
time under serious consideration in this negotiation. 

Another question, that of the Creole, though not mentioned in 
Aberdeen's instructions, was now under discussion by the two diplo- 

"F. O., Am., 378, no. 6. 

° Ihid., 379, nos. 2 and 3. A brief extract from no. 2, stating the purpose of 
the joint cruising squadron, is all that was printed in the Br. Sess. Paps., 1843. 
Commons, vol. LXL, Correspondence between Great Britain and the United 
States, p. 4. 



// 



E. D. Adams 



mats, since there was much pubhc excitement about it, and Ash- 
burton felt that it demanded consideration. An American ship, the 
Creole, had sailed from Virginia for Louisiana with a cargo of slaves, 
but at sea the slaves rose, imprisoned the officers and crew, and 
took the vessel into the port of Nassau. Here the slaves were given 
their liberty by British officials. In several previous cases American 
vessels transporting " domestic " slaves had been driven by stress of 
weather into British colonial ports, and the slaves freed by colonial 
officials. In this case " mutiny " was substituted for stress of weather 
and the slaves compassed their own freedom, without interposition 
of Providence, depending on the assistance of British colonial 
officers. The alleged mutiny, a new element in the situation, forced 
upon Ashburton and \\'ebster a thorough discussion of the relation 
of British officials and American slave-transfer ships. Subsequently 
Ashburton expressed to Aberdeen the hope that the British govern- 
ment would concede that in the future ships carrying American 
slaves should be free from interference in case no slaves had actually 
set foot on British soil. Security for the future, he wrote, was of 
more importance to Southern slave owners than compensation for 
past injuries. 

The third matter in these preliminary discussions reported by 
Ashburton, and in his view by far the most important, was England's 
insistence upon the right to visit. Yet delicate as the question was, 
Ashburton was pleasantly confident of greater progress than the 
home government anticipated, and he counted upon agreeably sur- 
prising Aberdeen. Webster had proposed a joint cruising squadron 
to sail the African coast for the purpose of suppressing the African 
slave-trade. Though without instructions upon the point, Ashburton 
was so sure of approval that he had already gone far in the pre- 
liminaries of such an arrangement, and wrote that if the plan could 
be successfully carried out, " I shall consider it to be the very best 
fruit of this mission ". As to the exact relation of this plan to 
the question of right of search, Ashburton was not explicit. 

In the second despatch of this date, however, the prospects 
seemed far less promising, for Ashburton here turned to the supple- 
mentary instructions on the Elaine boundary, and professed to find 
in these a possible, even a probable cause for the failure of the entire 
negotiation. In the supplementary instructions Aberdeen insisted 
on the entire territory west of the upper St. John, from the source 
of that river to the point of its junction with the St. Francis. This 
was a demand of territory far in excess of the Netherlands award 
and would have made possible a continuous military road, proceed- 

AM HIST. REV., VOL. XVII. — 5O. 



Lord Ashburton 772 

ing from Quebec in a southeasterly direction until it reached the 
headwaters of the St. John, then following the windings of that 
river to its entrance into the province of New Brunswick." The 
territory thus demanded by Aberdeen was an elongated rectangle, 
roughly outlined on its longer sides by the upper St. John on the 
southeast, and by the watershed of the St. Lawrence on the north- 
west. Ashburton at once recognized in this instruction a new and a 
serious departure from the plan previously agreed to by Aberdeen. 
He wrote that it now became necessary " to discuss with Your Lord- 
ship the very considerable reduction of the powers previously given 
to me . . . and to press earnestly upon your consideration whether 
those limitations . . . are not, if I do not misinterpret them, of a 
description calculated to expose to failure the whole attempt at 
negotiation ".® He emphasized also the mistake of insisting upon any 
great modification of the Netherlands award, since for a long time 
the L'^nited States had been most unwilling to accept even the line of 
that award, and since, also, Great Britain had, at one time at least, 
acceded to it. 

What one should like to have is one thing ; but to a compromise there 
must be two Parties, and our other Party in this case is a jealous, arro- 
gant, democratic Body. You may, it is true, from motives of expediency, 
refuse to treat; but this Mission in the face of the Publick. implies a 
readiness to settle differences on terms which reasonable Men shall say 
are fair and honorable. If I leave this Country throwing all our rela- 
tions with it into confusion, because I had insisted on a larger portion 
of this disputed Territory than we had at one period of our Negotia- 
tions been willing to accept, and which our Adversary had always re- 
fused to give, the consequence could not fail to be that the whole Union 
would indignantly take part with Alaine, and we should pass for a 
Power having trifled with and insulted the Country.* 

It is to be remembered that Ashburton, as all his correspondence 
shows, regarded the Maine boundary as but one of many important 
questions in negotiation. He now asserted that if the line of the 
upper St. John were insisted upon, it would wreck the treaty ; that 
the people of the United States were a unit in believing the pre- 
tensions of Maine to be just, and in believing also that Great Britain 
had " set up " a claim, merely to secure a military road. He com- 
bated with vigor the influence and arguments of " military experts ", 
whom he believed responsible for Aberdeen's demands. The upper 
St. John, he argued, was not absolutely essential to a military road. 

' The road earlier desired by military experts had crossed the St. John near 
its source, and then struck directly east across the land south of the St. John 
toward the nearest point of New Brunswick. Aberdeen, however, evidently con- 
sidered it useless to attempt to secure any territory south of the St. John. 

'Ashburton to Aberdeen, April 25, 1842. F. O., Am., 379, no. 3- 

' Ihid. 



']'i^ E. D. Ada7ns 

He urged rather that the real danger point for the line of com- 
munications was in that section where the road ran close to the lower 
St. John, from the upper Aladawaska settlement to the New Bruns- 
wick frontier, and that land secured on the south of the river here 
would widen the gap between the road and United States territory, 
and so constitute a much greater security. A concession from the 
United States at this point, he believed much more feasible than that 
outlined by Aberdeen, and he urged that he be given permission to 
make the substitution. This would secure to Great Britain the ter- 
ritory south of the St. John, lying between the Aroostook and Fish 
rivers, and w^ould be additionally desirable since many British citi- 
zens were already settled in the district. But even though Ash- 
burton proposed this counter-plan, he still emphasized the fact that, in 
the last resort, he must have authority to sign a treaty accepting the 
Netherlands award, precisely as outlined, or that Great Britain must 
be prepared to see a renewal of border troubles, with every prob- 
ability of war as a result. 

Fortunately for Ashburton, at the moment when he was thus 
checked by his new boundary instructions, Webster was experiencing 
difficulty with the Maine commissioners, and was forced to ask for 
delay. Pending a resumption of the boundary topic, the Creole mat- 
ter came up for further discussion. Webster, in response to in- 
dignant outcries from Southern slave owners, had instructed Everett, 
the xA.merican minister at London, to make a protest, and to ask for 
security against a repetition of the incident. Everett had not pre- 
sented the matter previous to Ashburton's departure, but the latter 
knew from Webster of Everett's instructions, and awaited develop- 
ments with keen interest. On April 28, Ashburton wrote to Aber- 
deen that ^^^ebster hoped to connect the case of the Creole with a 
general extradition treaty, in which an article should be inserted 
covering similar cases.^° Webster's draft article, transmitted by Ash- 
burton, would have compelled British colonial officials not only to 
abstain from all interference with slave vessels driven by stress of 
weather into British ports, but went still further in cases of mutiny 
by slaves, requiring colonial officials to aid the officers and owners to 
recover possession of their ships. Upon this latter clause Ash- 
burton made no comment, save to express the opinion that some 
agreement was necessary, if constant friction were to be avoided. 
Meanwhile Everett, acting upon instructions, had presented the 
American protest at London. He had received in reply a formal 
acknowledgment from the Foreign Office, in which the action of the 
colonial officials in the Creole case was commended. Aberdeen's at- 

^" Ihid.. no. 5- 



Lord Ashbiirton 774 

titude was distinctly disconcerting. A protest which could call forth 
neither courteous regrets nor the slightest hint of concession for the 
future spelled embarrassment at least for the negotiators. When 
the news reached Washington each felt that the matter constituted a 
serious menace to the success of their negotiation and it was agreed, 
as Ashburton reported to Aberdeen on May 12, that " for the present 
it [Aberdeen's reply to Everett] must not be published here, as it 
does not suit our present purpose to irritate the Southern people "." 
The Creole case being of secondary importance to Ashburton, he 
recurred to the project of a treaty covering the joint questions of 
right of search and the African slave-trade. The slave-trade treaty, 
he wrote, " is advancing favourably ". He lauded the report made to 
Webster by two American naval officers, Bell and Paine, upon the 
feasibility of joint cruising.^^ -phig report, dated May 10, 1842, is 
well known, and was printed in the official documents both of the 
United States and Great Britain, but one portion of it, as given in the 
orisinal,^^ which was sent to Aberdeen, is of especial interest in con- 
nection with the right of search. Bell and Paine, after narrating the 
conditions prevailing on the African coast, stated: 

We are of opinion that a squadron should be kept on the coast of 
Africa to co-operate with the British, or other nations interested in 
stopping the Slave-Trade ; and that the most efficient mode would be, 
for vessels to cruize in couples, one of each nation; (with an under- 
standing that either of the cruisers may examine a suspicious vessel so 
far as may be necessary to determine her national character ; while any 
farther search would be only pursued by the vessel having a right from 
the law of nations, or from existing treaties). 

The words included within the parentheses, in the quotation 
just given, have a line drawn through them in the original, and are 
omitted in the report as it finally appeared in print. Ashburton 
believed them to have been thus cut out by Webster, because they 
seemed to imply a concession of the "right to visit" for which 
the British had so long contended. He did not, however, com- 
ment upon this, but rather upon the reasonable spirit here mani- 
fested by American naval officers, and upon their genuine desire 
to suppress the slave-trade. Ashburton had been brought, indeed, 
to a keener realization than prevailed in England, of the sensi- 
tiveness of the American public in the matter of the right of search, 
and of the practical difficulties of American statesmen in so deal- 
ing with the question as not to endanger their own political future. 
In a second despatch of ISIay 12, he informed Aberdeen that the 

" F. O., Am., 379, no. 6. 

^-Br. Sess. Paps., 1843, Commons, vol. LXL, Correspondence between Great 

Britain and the United States, pp. 5-9- 

« Ashburton to Aberdeen, no. 6, May 12, 1842. F. O., Am., 379. 



775 E. D. Adams 

American position was due primarily to a fear of the renewal of 
British impressment, as formerly practised.^* Webster, in order to 
popularize the treaty, he argued, needed some British declaration, 
if not in the treaty itself, at least in the form of a note, that there 
would be no attempt in the future to impress British seamen from 
American vessels. He suggested a draft clause of such a declara- 
tion, and urged in support of it that Great Britain would never 
again venture to take seamen from American vessels. The clause 
read: 

that in the event of our being engaged in a war in which the 
United States shall be neutral, impressment from her Merchant Vessels 
navigating the High Seas will not be practised, provided that provision 
be made by Law or other competent regulation, that during such War 
no subject of the Crown be entered into the Merchant Service of 
America, that shall not have been resident at least five years in the 
United States. 

Ashburton's argument to Aberdeen was that : 

Impressment, as a system, is an anomaly hardly bearable by our own 
people. To the foreigner it is undeniable tyranny, which can only be 
imposed upon him by force, and submitted to by him so long as that force 
continues. Our last war, and the perils in which at some periods of that 
War we were involved, may perhaps have justified violence. America 
was comparatively weak, and was forced for some years to submit. . . . 
But the proportions of Power are altered. The population of America 
has more than doubled since the last War, and that War has given her 
a Navy which she had not before. A Navy very efficient in proportion 
to its extent. 

Under these circumstances can Impressment ever be repeated? I 
apprehend nobody in England thinks it can. 

In the matter of impressment, as in the case of the Creole, 
Ashburton was of course without instruction, and could enter into 
discussion with Webster only upon his own responsibility. Never- 
theless, informal unofficial discussions continued, and Ashburton 
evinced no less confidence than he had shown previous to the 
hampering boundary instructions. Ashburton's protest in that con- 
nection had been sent on April 25. The reply of the Foreign Office 
was prompt. On May 26 Aberdeen wrote that the first desire, and 
the real need of Great Britain was for the line of the upper St. 
John, and that Ashburton must try to secure this, in preference to 
the plan of obtaining land farther down and to the south of the 
river. ^^ But if this first object were unattainable, then Ashburton's 
plan might be urged ; and in the last resort, if the United States 
would yield neither of these portions of territory, then, only, and 

" Ihid., no. 7- . 
'^ Ibid., 378, no. 8. 



Lord Ashburton 776 

very reluctantly, Ashburton was given permission to "ascertain" 
if the Netherlands line, pure and simple, would be satisfactory to 
the United States. Ashburton had not asked directly for authority 
to conclude on the basis of the Netherlands line, but his arguments 
asserted that such a conclusion would be better than no treaty at 
all. Neither did Aberdeen give specific authority, but the form 
and manner of his reply to Ashburton indicated that Great Britain 
probably would not, in the last resort, refuse that line. Indeed, 
from the time when he received this instruction, the British negotia- 
tor felt free to conclude the Maine boundary question as his judg- 
ment dictated, provided only that the ultimate boundary line should 
not give Great Britain less than the Netherlands award. Late in 
June both Webster and President Tyler feared that Ashburton had 
been embarrassed by further instructions on the boundary question, 
and that these, in connection with the stubborn determination of 
the Maine commissioners, were wearing out his patience.^^ The 
boundary question, however, caused him no uneasiness. On June 
14, he wrote to Aberdeen that America was now ready to accept 
reasonable terms, adding : " I trust and hope that what we may do, 
may appear to deserve that character. That this should be so is 
of much more importance than any advantage to be gained in the 
details of a bargain."^' On June 29, after receiving Aberdeen's 
instruction of May 26, at a time when he was presumed to be 
discouraged, Ashburton wrote again that he now hoped to secure 
the line indicated by Aberdeen, namely, that of the upper St. John.^* 
In the formal statement of the British contention, presented to 
Webster on June 21, claim had been laid both to the upper St. John 
and to the Madawaska settlements south of the lower portion of 
that river, but it is evident from the correspondence with Aberdeen 
that Ashburton had no hope of securing the latter territory. The 
persistent refusal of Maine to consider this proposal, and the vexa- 
tious and threatening delays in the negotiation soon led the British 
agent to withdraw his claim to the lower Madawaska settlement. ^^ 
Such a concession was both reasonable and politic. Reiving in- 
deed on the implied permission given to him to sign a treaty based on 
the Netherlands award, he was at no time later seriously disturbed 
by the bargaining over boundaries. Indeed, the boundary question, 
in the light of his elastic instructions, was a far simpler matter to 
Ashburton than other points in dispute. When, therefore, after 
much forcing on the part of Webster, Maine was brought to con- 

^^ Reeves, American Diplomacy under Tyler and Polk, p. 47. 

" F. O., Am., 379, no. 9. 

^^ Ibid., no. 10. 

^"Ashburton to Aberdeen, July 13, 1842. Ibid., 380, no. 13. 



777 E. D. Adams 

sent to a compromise line, Ashburton felt that the solution was 
wholly satisfactory. The line agreed upon practically divided into 
equal portions that parallelogram of territory originally regarded by 
Aberdeen as essential to British military security. It gave the en- 
tire line of the St. John to the United States, but it also gave con- 
siderably more to Great Britain than had been awarded her by the 
King of the Netherlands. The boundary followed the St. John 
up to the point of its junction with the St. Francis, thence ran along 
that river to Lake Pohenagamook, and at this point departed from 
any so-called natural boundaries, and struck in a direct line to the 
southwest source of the St. John. This arrangement, in no way 
foreshadowed in the correspondence between Aberdeen and Ash- 
burton, made it possible, if desirable, for the military road to 
cross the "highlands" of the St. Lawrence at some point directly 
east of Quebec, and thence to run to the northeast, and on the 
■ eastern side of those highlands, as Aberdeen had apparently wished, 
rather than on the zifestern side, as Ashburton had proposed and 
the Netherlands award would have required. 

Aberdeen's instruction of :\Iay 26, on the boundary matter, 
reached Ashburton at the same time with brief replies, written on 
June 3, to the questions and suggestions addressed to the British 
government in regard to impressment, extradition, and the Creoler" 
It was in relation to these latter subjects that Ashburton was for 
the moment disquieted. In a short note Aberdeen refused to assent 
to the proposed abandonment of impressment on the ground that 
this would be "tantamount to an absolute and entire renunciation 
of the indefeasible right inherent in the British Crown to com- 
mand the allegiance and Services of its Subjects, wherever found". 
In another note of the same date.-^ he approved the terms of the 
proposed extradition article, and the list of crimes, except that of 
"mutiny and revolt on board ship", whicli was the wording of the 
clause intended by the negotiators at Washington to cover cases 
like the Creole. The joint-cruising project which Ashburton had 
reported with such enthusiasm. Aberdeen briefly approved without 
comment. Ashburton could only feel that the British ministry was 
either indiiTercnt to the plan of "settling all points in dispute", or 
else was too exclusively concerned with the boundary to see clearly 
the bearing and importance of other matters. On June 29, in ac- 
knowledgment of the advices from the Foreign Office just referred 
==* Aberdeen to Ashburton. Ibid., 2.7^, no. 9. A brief extract, approving the 
joint-cruising clause, together with an extract from Ashburton's first report on 
this topic, April 25, was printed in Br. Sess. Paps.. 1843. Commons, vol. LXT., Cor- 
respondence between Great Britain and the United States, p. 4- 
" F. O., Am., 378, no. 10. 



\ 



Lord AsJiburton 778 

to, he despatched three communications to Aberdeen. The first of 
these, already noted, stated that generous boundary concessions by 
the United States were within view ; the second expressed regret 
at Aberdeen's decision with regard to impressment, but made no 
further proposal ;-- while in the third Ashburton recapitulated the 
reasons for taking up the questions of extradition and the Creole, 
stating that in America his mission was expected to dispose of all 
the questions of difference between the two nations. He, too. had 
hoped to meet these expectations and was greatly chagrined to learn 
the decision of the British cabinet in regard to them. In the case 
of the Creole, he assured Aberdeen that failure to give satisfaction 
for the future would be a serious disappointment to the American 
President and Congress, and threatened the successful conclusion 
of other matters under discussion."^ The contradiction in language 
and tone between despatches written on the same date, in one of 
which Ashburton was extremely confident of boundary advantages, 
and in another doubtful as to securing any treaty at all, is difficult 
to explain. Possibly the three despatches, taken together, were 
intended to convey to Aberdeen an idea of the large advantages in 
boundary that might have been secured had Ashburton been given a 
free hand in other matters and certainly his communications of 
Tune 29 laid the ground of an excellent defense, on the line of 
hampering restrictions, in case the entire negotiation came to 
naught. 

The treaty finally included, in addition to boundary matters, 
articles providing for joint cruising in suppression of the slave- 
trade, and for extradition. A note by Ashburton, together with one 
by Webster, covered the case of the Caroline, and apolog}' " for the 
necessity of the act ", was expressed on the lines indicated by 
Aberdeen in his first instructions. Webster's note on impressment 
presented in elaborate form the American contention against the 
British assertion of this right, and in reply Ashburton admitted 
"that some remedy should, if possible, be applied. At all events 
it must be fairly and honestly attempted.""* This implied a pledge 
of later negotiation. On the Creole, Webster's note asked that 
Ashburton promise that instructions should be given to colonial 
officers to safeguard the rights of citizens of the United States. 
In reply, Ashburton expressed his regret that he had no instruc- 
tions in the matter, and stated that he might even have ventured 

^ F. O., Am., 379, no. ii. 
-^ Ih'id., no. 12. 

^Ashburton to Webster, August 9, 1842. Br. Sess. Pats., 1845, Coinmo"- vol. 
LXI., Correspondence between Ashburton and Webster, p. 64. 



779 E. D. Adams 

to act without such instructions, "if I had not arrived at the con- 
clusion, after very anxious consideration, that . . . this question had 
better be treated in London, where it will have a much increased 
chance of settlement on terms likely to satisfy the interests of the 
United States ".-= On August 9, Ashburton transmitted to Aber- 
deen this correspondence with Webster, and explained why he had 
ventured upon it.-'^ Some official statement upon the Creole, he 
asserted, had become essential to the safety of the treaty. It had 
proved the most difficult of all the topics with which he had at- 
tempted to deal. Webster's note and argument were " mainly cal- 
culated to cover his popularity in the South ", while his own note 
" was intended to evade any engagement, while I maintained our 
general principles wuth regard to Slavery ". " To say something 
conciliating was indispensable to the safety of our other objects." 
Ashburton expressed the hope that his vague pledge as to the 
conduct of colonial officials would not be disavowed, and again in- 
sisted that British lawyers must find some way out of this difficulty, 
or constant friction with the United States would surely result. 
Two treaties were ultimately agreed upon and signed by the nego- 
tiators, the one dealing with the boundary, the other with the 
topics of joint cruising and extradition. These were transmitted 
to England for ratification, but the day after they were despatched, 
it was considered wiser, in view of possible rejection by the Senate, 
that they be incorporated in one treaty, and this was done.-' 

The foregoing account of the steps of this negotiation, so far 
as existing documents can testify, throws much light on the char- 
acter of Ashburton as a diplomatist. He was despatched to Amer- 
ica when relations between the two countries were sufficiently 
strained to require a conciliating personality and when the de- 
mands of the people and of the government were so exacting as 
to call for a master hand. That he knew American life thoroughly. 
had many American friends, and a charming American wife, doubt- 
less contributed to his selection, and were important facts in his 
favor. But they do not explain his sometimes cavalier treatment 
of his instructions, nor his remarkable readiness to assume re- 
sponsibility. The very method of procedure, of so informal a 
nature as to cause Benton to complain that no treaty had ever 
been presented to the United States Senate with so little evidence 
as to the steps in the negotiation, appears to have been chosen by 
Ashburton. These friendly conferences, to which \A'ebster will- 

"^ Ashburton to Webster, August 7, 1S42. Ihid.. p. 40. 

^ F. O., Am., 379, no. 20. 

"Ashburton to Aberdeen, August 13, 1842. Ihld., 380, no. 23. 



Lord Ashburton 780 

ingly assented, took the place of formal negotiations and were 
carried on without the exchange of written papers, until the time 
came to cast the final results into shape for presentation. Webster, 
it is true, has been charged with beguiling Ashburton into the 
adoption of this plan, but the latter's letters to his chief clearly 
proclaim Ashburton's responsibility in the matter.-* Also, from 
the very first Ashburton insisted that discussion of the boundary 
must not turn on contemporary opinion at the time of the original 
treaty, 1783, but must merely seek to discuss what was noiv fair 
and just to both parties. Indeed he not only impressed this ver- 
bally upon Webster, but also made it an essential feature of his 
first formal statement of the British case on June 21, and reiterated 
it in a private letter to Webster. The guiding principle of the nego- 
tiation must be, he wrote, "that the treaty of 1783 was not execut- 
able, according to its strict expression, and that the case w^as there- 
fore one for agreement by compromise ".^^ He claimed that he 
himself had much new material, but that he would not produce it, 
since the one chance of reaching a solution was to avoid technical- 
ities. He was quite consistent in this affirmation. Later des- 
patches show that he frequently prevented the boundary discus- 
sions from reverting to an analysis of and deductions from the 
words of the treaty of 1783. 

The assumption of mutual confidence and the intimacy of com- 
munication, it has been maintained, placed an obligation upon both 
representatives to be perfectly open in bringing forward all matters 
pertinent to the case. In support of this contention, it has also been 
said that Webster sinned as a gentleman and a diplomat in with- 
holding from Ashburton's knowledge the map found by Jared 
Sparks in Paris, which accorded with the British claim. On the 
other hand, there could be no betrayal when each had consented 
to avoid all technical discussion and all new material. The Sparks 
map, Webster's weapon to coerce the Senate and to browbeat 
Maine, is quite apart from the negotiation, as it was. of course, 
non-existent to Ashburton. Upon this point Ashburton wrote, 
after returning to England: "The public are very busy with the 
question whether Webster was bound in honour to damage his 
own case by telling all. I have put this to the consciences of old 
diplomatists without getting a satisfactory answer. Aly own opin- 
ion, is that in this respect no reproach can fairly be made." And in 
another letter a few days later, he wrote, " If I am called upon to 

=« Ashburton to Aberdeen, July 13, 1842. F. O. Am., 380, no. 13. 
"Ashburton to Aberdeen, June 29, 1842, enclosing a copy of a letter to Web- 
ster of June 21. Ihid., 379. no. 10. 



78 1 E. D. Adams 

say anything in the Lords, it will be in favour of my collaborator 
on this point."^^ 

In Ashburton's prompt and emphatic protest against the hamper- 
ing instruction of ]\Iarch 31, and his freedom at all times in dis- 
cussing matters upon which he was without instructions, can be seen 
the exceptionally independent negotiator. His communications 
clearly show him to be positive, fearless, and tenacious, though at 
no time actually disobedient to orders, nor often out of sympathy 
with his chief. Suddenly halted in the boundary discussion, he im- 
mediately entered upon the matters of impressment and the Creole, 
both subjects upon which he had no advices whatever. If he really 
came to deal with " all matters in dispute '', he was surely attempting 
to fulfil his function. Possibly he trusted his protest against sup- 
plementary instructions and reasons therefor, to bring him greater 
liberty of action, and in the outcome he was not disappointed. Am- 
bitious alike to serve the home government acceptably and to be in- 
strumental in the acquisition of all available territory, he made strong 
efiforts to realize Aberdeen's wishes. He was embarrassed by no 
further instructions, and, as has been shown, he was not unsuccess- 
ful. He was chagrined, unquestionably, that no conclusion could be 
reached in the matters of the Creole and impressment, and that these 
matters could not be included in the treaty. That the failure to ac- 
complish this did not ultimately imperil the treaty is further tribute 
to the skill of the agent. Though unauthorized to commit his coun- 
try in any way upon these matters, he yet handled the situation so 
tactfully that no complaints could be made. The Oregon boundarv 
difficulty, another item omitted, seemed to him remote and the failure 
to settle it of no immediate importance, yet it proved to be the occa- 
sion of the next acute crisis. Ashburton, however, was no more 
blind to the future in this particular than was Webster himself. 

It was not to be expected that a treaty which was in the nature 
of a compromise would be well received b\ the people in either 
country. \"iewed fairly however, with allowances for the difficulties 
of the transaction, the necessity for conciliating the irritated Amer- 
icans as well as the insistent and long-suffering British, it should 
be conceded that Lord Ashburton accomplished his mission witli 
distinguished success. In spite of this, the treaty came to be known 
in England as the "Ashburton capitulation" — a most unjust impu- 
tation, for at the same time a jealous American public felt it had 
equal cause to feel itself defrauded by Webster. Prejudice was to 
be expected however, for it was quite ini])ossible that there could be 

'"Ashburton to Croker, February 7 and February 13, 1S43. Crokcr, Corre- 
spondence and Diaries (New York, 1884), II. 192. 



Lord Ashbitrtou 782 

in England any actual appreciation of the American point of view 
or of the temper of the American public. Regarding the conclusion 
of his work, Ashburton wrote: 

Upon the defence of my treaty I am very stout and fearless, and they 
who do not like it may kill the next Hotspur themselves. It is a subject 
upon which little enthusiasm can be expected. The truth is that our 
cousin Jonathan is an aggressive, arrogant fellow in his manner. . . . 
By nearly all our people he is therefore hated, and a treaty of concilia- 
tion with such a fellow, however considered by prudence or policy to be 
necessary, can in no case be very popular with the multitude. Even 
my own friends and masters who employed me are somewhat afraid of 
showing too much satisfaction with what they do not hesitate to 
approve.^^ 

He had, he felt, been instrumental in bridging over a dangerous 
crisis in the relations of the United States and Great Britain and no 
disturbance seemed likely in the near future.^- He had more than 
justified his selection and the unusual powers given him. He had 
proved himself an accomplished diplomatist, courteous, patient, con- 
siderate, and above all, just. He had secured for Great Britain con- 
siderably more than the minimum of disputed territory she had 
stipulated for and more than America was prepared to give. The 
British government had every reason to congratulate itself that it 
had chosen Lord Ashburton, and, in the end, had trusted to him the 
negotiation of the northeastern boundary. 

Ephraim Douglass Adams. 

"Ashburton to Croker, November 25, 1842. Croker, II. 188. 
^Ashburton to Aberdeen, August 31, 1842. F. O., Am., 380, no. 24. 



LiBRfi"^ °'=„frjrHHi 




*S'l'l 895 625 



